Bombay High Court
Hardeep Singh Arora vs The State Of Maharashtra And Ors on 12 January, 2018
Bench: Anuja Prabhudessai
Megha wp_4695_2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4695 OF 2017
Hardeep Singh Arora
Age 40 years, Occ: Service,
Having permanent address at:A/2
Rupal Flats,
Near Saint Xaviers High School,
Memnagar,
Ahmedabad-380052.
Presently office/contact address at:
51 Changi Busines Park Central
2,#07-09 The Signature, Singapore
486066.
...Petitioner
Versus
1. The State of Maharashtra
2. Government of India.
(Immigration Authority)
3. Mrs. Amardeep Hardeepsingh
Arora
Age 36 years, Occ.: Service,
Presently residing at-Lok Terrace Co-
op Society, D/114, Section-17, Plot ...Respondents
No.16, Vashi, Navi Mumbai.
.....
Mr. Pradeep Chavan i/b. M/s. Pradeep Chavan and Associates for the
Petitioner.
Mrs. Ameeta Kuttikrishnan for the Respondent No.2.
Mr. Sanskar Marathe i/b. Mr. H. & M. Legal for the Respondent No.3.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
JUDGMENT RESERVED ON : 20/11/2017
JUDGMENT PRONOUNCED ON:12/1/2018
JUDGMENT:-
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The challenge in this petition is to the order dated 8 th
October, 2015 in Criminal Complaint No.OMA/205/2015 whereby the
learned Judicial Magistrate, First Class, Belapur, has ordered service of
summons through the Immigration Authority of India and issued
directions to the Immigration Authority not to permit the Petitioner
herein to leave India without permission of the Court.
2. The Petitioner is the husband of the Respondent No.3.
They were married on 5.12.2002 and have two minor children from
the said wedlock. The Petitioner is working in Singapore since May-
2008. The Respondent No.3 had also joined him at Singapore.
However, she returned to India in the year 2011. It appears that there
was a matrimonial dispute between the Petitioner and the Respondent
No.3. As a result thereof, the Respondent No.3 did not return to
Singapore and started residing with her parents alongwith her two
children.
3. The Respondent No.3 filed an application under Section 12
of the Protection of Women from Domestic Violence Act (for short 'DV'
Act) before the learned Judicial Magistrate, First Class, Belapur,
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against the Petitioner, his parents and other family members, seeking
protection order, residence order as well as monetary relief for herself
and the two minor children.
4. The Respondent No.3 filed an application dated 8th October,
2015 stating that the Petitioner herein comes to India on 2 nd and 4th
Saturday of the Month during morning hours and that he leaves the
Country on Sunday Night. The Respondent No.3 claimed that since the
Petitioner was coming to India when the Courts are closed it is not
possible to serve the notice on him while he is in India. The
Respondent No.3 further claimed that the proceedings were likely to be
delayed and her rights and benefits would be frustrated. She
therefore, prayed that the Immigration Authority should be directed
not to allow the Petitioner to leave the country without the permission
of the Court.
5. Based on the averments made in the said application, the
learned Magistrate directed that the notice should be served through
the Immigration Authority apart from other modes such as E-mail,
through authorised courier service and by speed post. The learned
Judge also directed the Immigration Authority not to allow the
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Petitioner to leave the country without permission of the Court. Being
aggrieved by this order the Petitioner has filed this Petition.
6. During the pendency of this Petition, the Petitioner and the
Respondent No.3 have arrived at an interim arrangement pending the
hearing and final disposal of the interim application of the DV Act.
They have placed on record the consent terms, which read as under :
"(1) It is agreed between the Petitioner and the
Respondent No.3 that by way of interim maintenance
to the children of the Petitioner and the Respondent
No.3, namely Ms Romansha and Master Tanish, the
Respondent No.3 will open a joint account in the
name of the two children, in a nationalize bank, and
give details of the same to the Petitioner.
2. It is agreed between the petitioner and Respondent
No.3 that they will deposit an amount of Rs.20,000/-
(Rupees Twenty Thousand only) each, every month,
in the said account towards the expenses of the said
children from the date of signing of this consent
terms.
3. It is agreed that the Petitioner-father in addition to
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Rs.20,000/- per month as mentioned above, shall also
incur the education expenses of both the children. It
is agreed that the said amount of education expenses
will be paid directly to the school by way of internet
banking. The Respondent No.3 shall take necessary
fee receipts from the school and share the same with
Petitioner.
4. It is agreed by the Respondent No.3-mother that
she will utilize the said amount only towards the
expenses of the children and the monthly accounts of
the children shall be shared with the Petitioner.
5. It is agreed that the above arrangement is pending
the final outcome of the interim maintenance
application and without prejudice to rights and
contentions of both, the Petitioner and Respondent
No.3 before the Ld. Trial Court."
7. The said terms are signed by the respective parties and their
counsels. The terms are agreeable to the parties and are taken on
record and marked Exhibit-'X'. The undertaking given in the said terms
are accepted.
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8. Now coming to the merits, the main challenge in the
petition is to the Restrictions on the right to travel abroad. The learned
counsel for the Petitioner submits that the directions issued to the
Immigration Authority to prevent the Petitioner from leaving the
country are totally arbitrary and are in contravention of the settled
principles of law. He has submitted that on receipt of the notice sent
by courier, the Petitioner had put in his appearance, filed his reply and
attended all further hearings either personally or through his Advocate.
He has further submitted that the matter was referred for mediation
and that the Petitioner had personally attended the mediation
proceedings on 6.11.2017. The learned counsel for the Petitioner
submits that the impugned order was never served upon the Petitioner.
On 6.11.2017, when the Petitioner had come to India to see his ailing
mother he was detained by the Immigration Authority at Chatrapati
Shivaji International Airport, Mumbai and he was informed that a
lookout circular was issued against him as per the order of the learned
J.M.F.C., Belapur. The Petitioner, filed an application dated 9 th
November, 2017 before the learned Magistrate, seeking to recall or
vacate the said order. However, the learned Magistrate refused to
entertain the said application. Drawing my attention to the averments
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made in paragraph 25 of the application under Section 12 of the DV
Act, Mr. Pradeep Chavan, the learned counsel for the Petitioner has
submitted that the Respondent No.3 had deliberately made a false
statement in the application dated 8th October, 2015 as regards his
frequent visits to India. He has submitted that by making such false
statement, the Respondent No.3 tried to create an impression that the
Petitioner was avoiding service or process of the Court.
9. The question for consideration in this writ petition is
whether the petitioner, who is a Respondent in DV proceedings could
be prevented from travelling abroad. In Maneka Gandhi v/s Union of
India [1978 (1) SCC 248] the Apex Court has held that personal
liberty within the meaning of Article 21 of the Constitution includes
within its ambit, a right to go abroad. No person, including an accused,
can be deprived of this right except in accordance with the procedure
established by law. Nevertheless, this right is not absolute and the
court can curtail the right of an accused to travel abroad for valid
reasons, for instance to secure presence of a proclaimed offenders, to
facilitate court proceedings and or to secure presence of those persons
who are evading their presence in the course of judicial trial. Suffice to
say that while curbing the right of an accused to travel abroad, the
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court has to look into the entire gamut of the facts and circumstances
of the case, the gravity of the crime and weigh the balance of
requirement or the presence of the accused during course of trial,
likelihood of his return etc. Thus, depending on the facts of the case,
the court, for valid reasons, may curb such right of an accused or may
grant permission on imposing conditions deem fit to secure his
presence.
10. In the instant case, the Petitioner is not involved in any
criminal case and his presence was not required for investigation. He
is not an antisocial element with criminal antecedents, who was likely
to flee from the country to evade arrest or prosecution. He had also
not flouted any order of the Court as to warrant such action. The
Petitioner is a Respondent in proceedings under Section 12 of the DV
Act wherein the Respondent No.3 has sought protection and residence
orders and monetary relief under Section 18, 19 and 20 of the DV Act.
The Domestic Violence Act, as can be seen from Clause 3 of Statement
of Objects and Reasons of the DV Act, was enacted to provide a remedy
under the civil law, which is intended to protect the women from being
victims of domestic violence and to prevent the occurrence of domestic
violence in the society. It is further to be noted that none of the
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provisions of the DV Act, except Sections 31 and 33 are penal in
nature. The DV Act therefore cannot be said to be a penal statute and
the proceedings under the DV Act do not partake character of criminal
proceedings. The Petitioner, who is a Respondent in DV proceedings
and not being an offender or an accused in a crime, his right to travel
abroad could not have been abridged solely due to filing of or
pendency of proceedings under the DV Act.
11. It is also pertinent to note that in the application under
Section 12 of the DV Act the Respondent No.3 had claimed that the
Petitioner visits Ahmedabad and Mumbai once in every six or seven
months and this fact can be verified from the passport. Whereas in the
application 8th October, 2015, which is supported by an affidavit, the
Respondent No.3 had stated that the Petitioner visits India on every
2nd and 4th Saturday and leaves on Sunday and hence it is not
possible to serve the notice personally. The travel documents of the
Petitioner clearly indicates that the statement made by the Respondent
No.3 in the application dated 8th October, 2015 regarding his travel to
India are incorrect and were apparently made to mislead the court to
believe that the Petitioner was avoiding the process of Court. Suffice it
to say, making a false statement under oath or affirmation in the course
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of a judicial proceeding tends to obstruct the due course of justice and
a person making false statement renders himself liable for perjury as
well as action under Contempt of Court Act.
12. The records further reveal that upon receipt of the notice
sent by courier, the petitioner had put in his appearance at the first
hearing. He had filed his reply, and attended all subsequent hearings
either personally or through his lawyer. Yet he was not made aware of
the directions given to the Immigration Authority. It appears that the
impugned order dated 8th October, 2015 was forwarded to the
Immigration Authority and coercive action was taken against the
petitioner only after the failure of the mediation proceedings.
13. The records thus clearly indicate that the Respondent No.3
had obtained the order by making false and misleading statements and
used the judicial proceedings to wreck the personal vengeance. This is
nothing but sheer abuse of process of court. The conduct of the
Respondent No.3 in making a false statement and using the judicial
proceeding to settle her personal scores needs to be deprecated.
However, considering that the Respondent No.3 has tendered oral as
well as written unconditional apology and given an assurance not to
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repeat such acts, I do not wish to stretch the issue any further.
14. The records reveal that the learned Magistrate had passed
the impugned order mechanically and casually on an unfounded
apprehension that the Petitioner is likely to delay the proceedings. It is
also to be noted that the petitioner was not heard in the matter before
passing such drastic order. Furthermore, having violated the most
valuable rights of the petitioner to travel abroad and earn his
livelihood, the learned magistrate has observed that the impugned
order would not prejudice the petitioner. The order reflects total non
application of mind and being arbitrary and illegal cannot be
sustained.
15. The learned counsel for the Petitioner has also questioned
issuance of notice through the Immigration Authority. It is seen that
the Magistrate had ordered service of notice through the Immigration
Authority as well as by E-mail, authorised courier service and speed
post. Pursuant to the said order, notice was dispatched to the
Petitioner through courier service and he has been duly served with the
notice. Thus the direction to serve the notice through the Immigration
Authority has rendered otiose. Nevertheless, it would be relevant to
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mention here that the notice under Section 13 of the DV Act has to be
served in one of the modes prescribed under Sub Rule 2 of Rule 12 of
the Domestic Violence Rules, 2006.
16. For the reasons stated above, the writ petition is allowed.
The directions given to the Immigration Authority not to permit the
Petitioner to leave India without prior permission of the court is
quashed and set aside.
(ANUJA PRABHUDESSAI, J.)
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